Foreign Labor

The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.

Step 1: Determining Eligibility

A U.S. employer or an association of agricultural producers who has full-time work that needs to be performed on a temporary or seasonal basis may apply to the OFLC for an H-2A temporary labor certification. The general guidelines below will help you understand whether you are eligible to participate in the H-2A Program.

• You must be an employer with a place of business physically located in the United States, possess a valid Federal Employer Identification Number (FEIN); and have the ability to hire, pay, fire, supervise, or otherwise control the work of the workers you employ;
• The work to be performed must consist of agricultural labor or services, such as the planting, raising, cultivating, harvesting, or production of any agricultural or horticultural commodity;
• The work must be full-time, at least 35 hours (or more) per work week; and,
• The need for the work must be seasonal or temporary in nature and tied to a certain time of the year by a recurring event or pattern, such as an annual growing cycle, normally lasting 10 months or less.

Step 2: Filing a Job Order with the State Workforce Agency (SWA)

This involves preparing and submitting an agricultural job order (Form ETA-790/790A) to the SWA that serves the state where the actual work will be performed. The SWA will review the job order, work with you on any needed corrections, and initiate recruitment of U.S. workers.

• When: 75 to 60 calendar days before the start date of work

Step 3: Filing an H-2A Application with the Chicago National Processing Center (NPC)

Submit an H-2A application to the OFLC’s Chicago NPC. The Chicago NPC will review your application, notify you of any deficiencies, and provide you with additional instructions for completing the temporary labor certification process.

• When: No less than 45 calendar days before the start date of work

Step 4: Creating an Employer Account on Maine JobLink
Immediately following the creation of the employer account on the Foreign Labor Application Gateway (FLAG) website, visit Joblink.maine.gov, which is the Maine Department of Labor’s electronic job board.  Employers must create an account to assist in the recruitment of local and intrastate Maine workers.

• What: Joblink.maine.gov which is the Maine Department of Labor’s electronic job board.  Employers must create an account to assist in the recruitment of local and intrastate Maine workers.
• When: Immediately following the creation of the employer account on the Foreign Labor Application Gateway (FLAG) website.

Step 5: Activating the Employer Maine JobLink Account

• What: Contact the Maine JobLink team directly to have the employer account activated.
• When: As soon as possible, after Maine JobLink account has been created.
• How: Please call 207-623-7967 or Email: JobLink@maine.gov

Step 6: Conducting Recruitment for U.S. Workers
The recruitment of U.S. workers you will be conducted by the employer and includes where and when to advertise, what content the advertisements must contain, and how to prepare your recruitment report.

• When: Recruitment beginning on the date you receive the Notice of Acceptance from the Chicago NPC until you complete the recruitment steps

Step 7: Housing Inspections

An employer applying for H-2A temporary workers must provide approved housing for all workers who are a part of the job order, including H-2A temporary workers and U.S. workers engaging in corresponding employment (sharing at least one job duty) who cannot reasonably commute from their homes daily.

• When: At least 30 days prior to date of need.  Housing needs to be 100% move in ready at the time of the inspection.

Employer-owned or Rented Housing, Trailers, Hotels/Motels or other accommodations: MDOL will request an inspection to ensure the housing meets the applicable safety standards, including those set by the Occupational Safety and Health Administration (OSHA) (29 CFR 1910.142), for housing construction completed or under a signed contract for construction on April 3, 1980 or subsequent or the Employment and Training Administration (ETA) (20 CFR Part 654 Subpart E), for housing completed or under construction prior to April 3, 1980 or was under a signed contract prior to March 4, 1980.  All housing must cover the period of need, and for rentals or hotel/motel accommodations, must be signed by both the employer and the person responsible for the facility. 

• See the Housing Inspection section for more information.

Step 8: Completing the Temporary Labor Certification Process
The final step in this process identifies the additional documents you must submit to the Chicago NPC in order to receive a final determination; and, should labor certification be granted, moving on to the USCIS.

• When: No less than 30 calendar days before the start date of work

For H-2A Temporary Labor Certification for Range Herding or Production of Livestock Workers or other questions on Foreign Labor, please visit https://flag.dol.gov/programs/H-2A

Employer-Provided Housing
To prevent delays in processing, or possible denial of the employer’s ETA Form 790, the employer’s housing inspection results are due to the U.S. Department of Labor Chicago National Processing Center (CNPC) no later than 35 days prior to the workers’ arrival.

Changes made to housing (number of workers, beds, or locations, etc.) after the original ETA Form 790 is submitted must be communicated to MDOL- Foreign Labor Department at maine.H2A.H2B@maine.gov. The employer must also file a modification request with the Chicago National Processing Center (CNPC).

Employer-Provided Housing Process
Once the employer has uploaded its ETA Form 790 to FLAG, the Maine Foreign Labor Certification office will contact the employer to schedule a housing inspection. Due to heavy seasonal workloads, time to schedule a housing inspection may be lengthy.  Please ensure the housing is unoccupied and 100% move-in ready for inspection as soon as possible.

Rentals and Leases: If the provided housing is rented or leased by the employer, a signed copy of the lease agreement is also required.

Hotels or Motels: If the employer is providing hotel/motel accommodations for workers, a copy of the hotel/motel arrangements on hotel/motel letterhead must be provided. If no kitchenette is provided by the hotel, a list of restaurants with menus must be provided.

For employers using temporary housing for migrant agricultural workers, all the same regulations are applicable for inspections.  Employers need to contact MDOL- Foreign Labor Department at maine.H2A.H2B@maine.gov or 207-623-7967, to set up an inspection. 

The H-2B temporary non-agricultural program permits U.S. employers to hire nonimmigrant workers to come to the U.S. and perform non-agricultural services or labor. Visit our data disclosure page to see all the different types of jobs that fall into the category of H-2B. Current regulations cap the amount of H-2B workers to 66,000 per year. For a detailed explanation of the program and instructions click here.

Steps for Filing H-2B Requests:

Step 1: Determine Eligibility
To Participate in the H-2B program, an employer must be a bona fide U.S. employer with possession of a valid Federal Employer Identification Number (FEIN), physically located in the United States and needs to have the means to be contacted for employment
The employer's job opportunities must be:

• Temporary (9 months or less, except one-time occurrences),
• Full-time (35 or more hours per week), and 
• Non-agricultural employment within a specified area(s) of intended employment.

With the exception of a one-time occurrence need which can last up to 3 years, temporary need will not be approved for longer than 9 months.

Step 2: Obtain a Prevailing Wage (Forms ETA-9141 and 9165)

• Employer must request and obtain a prevailing wage determination (PWD) from the OFLC Nation Prevailing Wage Center (NPWC) before filing an H-2B application.
• Employers are encouraged to file at least 60 days before the determination is needed.

Step 3: File an Application and Job Order with the Chicago National Processing Center (NPC)
Employers can choose to file either electronically or by mail. Below is a list of what to include:

• H-2B Application for Temporary Employment certification (Form ETA-9142B) and appendices
• A valid PWD tracking number issued by the NPWC
• A copy of the job order submitted to the SWA
• Copies of all contracts and agreements with the employer demonstrating the authority to represent the employer (agents and/or recruiters)
• Contact information for all persons and entities hired by or working for recruiters or agents including any subagents or employees of such person and entities (as applicable)
• Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor Certificate of Registration (agents, as applicable)
• Any applicable supporting documentation

Step 4: Create an Employer Account on Maine JobLink

• What: Joblink.maine.gov which is the Maine Department of Labor’s electronic job board.  Employers must create an account to assist in the recruitment of local and intrastate Maine workers.
• When: Immediately following the creation of the employer account on the Foreign Labor Application Gateway (FLAG) website.

Step 5: Activate the Employer Maine JobLink Account

• What: Contact the Maine JobLink team directly to have the employer account activated.
• When: As soon as possible, after Maine JobLink account has been created.
• How: Please call 207-623-7967 or Email: JobLink@maine.gov

Step 6: Conduct Recruitment of U.S. Workers
Within 14 days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including:

• Placing newspaper advertisements,
• Contacting former U.S. workers,
• Contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer's current employees, and
• Conducting any additional recruitment, if directed by the Certifying Officer.

For more information: www.flag.dol.gov/programs/h-2b